-
Easter Term
[2018] UKSC 26
On appeal from: [2016] EWCA Civ 808
JUDGMENT
Navigators Insurance Company Limited and others
(Respondents) v Atlasnavios-Navegacao LDA
(formerly Bnavios-Navegacao LDA) (Appellant)
before
Lord Mance, Deputy President
Lord Sumption
Lord Hughes
Lord Hodge
Lord Briggs
JUDGMENT GIVEN ON
22 May 2018
Heard on 20 March 2018
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Appellant Respondents
Alistair Schaff QC Colin Edelman QC
Alexander MacDonald Guy Blackwood QC
(Instructed by W Legal
Ltd)
(Instructed by Stephenson
Harwood LLP)
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Page 2
LORD MANCE: (with whom Lord Sumption, Lord Hughes, Lord Hodge
and
Lord Briggs agree)
Introduction
1. In August 2007, the vessel “B Atlantic”, owned by the
appellant, was used by unknown third parties in an unsuccessful
attempt to export drugs from Venezuela.
After her consequent detention by the Venezuelan authorities and
the expiry of a
period of more than six months, the owners treated the vessel as
a constructive total
loss. The issue is whether the vessel sustained a loss by an
insured peril, entitling
the owners to recover the vessel’s insured value from the
respondents, her war risks
insurers.
2. The war risks insurance policy was for a year commencing 1
July 2007. According to section A, it afforded hull and machinery
cover
“including strikes, riots and civil commotions, malicious
damage and vandalism, piracy and/or sabotage and/or
terrorism
and/or malicious mischief and/or malicious damage, including
confiscation and expropriation.”
The cover afforded was on the terms of the Institute War and
Strikes Clauses Hulls-
Time (1/10/83). These provide as follows:
“1. PERILS
Subject always to the exclusions hereinafter referred to,
this
insurance covers loss of or damage to the vessel caused by
1.1 war civil war revolution rebellion insurrection, or
civil strife arising therefrom, or any hostile act by or
against a belligerent power
1.2 capture seizure arrest restraint or detainment, and
the consequences thereof or any attempt thereat
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1.3 derelict mines torpedoes bombs or other derelict
weapons of war
1.4 strikers, locked-out workmen, or persons taking
part in labour disturbances, riots or civil commotions
1.5 any terrorist or any person acting maliciously or
from a political motive
1.6 confiscation or expropriation.
2. INCORPORATION
The Institute Time Clauses-Hulls 1/10/83 (including 4/4ths
Collision Clause) except Clauses 1.2, 2, 3, 4, 6,12, 21.1.8,
22,
23, 24, 25 and 26 are deemed to be incorporated in this
insurance in so far as they do not conflict with the
provisions
of these clauses.
…
3. DETAINMENT
In the event that the Vessel shall have been the subject of
capture seizure arrest restraint detainment confiscation or
expropriation, and the Assured shall thereby have lost the
free
use and disposal of the Vessel for a continuous period of 12
months then for the purpose of ascertaining whether the
Vessel
is a constructive total loss the Assured shall be deemed to
have
been deprived of the possession of the Vessel without any
likelihood of recovery.
…
4. EXCLUSIONS
This insurance excludes
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Page 4
4.1 loss damage liability or expense arising from
…
4.1.2 the outbreak of war (whether there be a
declaration of war or not) between any of the
following countries:
United Kingdom, United States of
America, France,
the Union of Soviet Socialist Republics,
the People’s Republic of China
4.1.3 requisition or pre-emption
4.1.4 capture seizure arrest restraint detainment
confiscation or expropriation by or under the
order of the government or any public or local
authority of the country in which the Vessel is
owned or registered
4.1.5 arrest restraint detainment confiscation or
expropriation under quarantine regulations or by
reason of infringement of any customs or trading
regulations
4.1.6 the operation of ordinary judicial process,
failure to provide security or to pay any fine or
penalty or any financial cause
4.1.7 piracy (but this exclusion shall not affect
cover under Clause 1.4),
4.2 loss damage liability or expense covered by the
Institute Time Clauses-Hulls 1/10/83 (including 4/4ths
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Collision Clause) or which would be recoverable
thereunder but for Clause 12 thereof …”
The period of 12 months in clause 3 was by agreement reduced to
six months.
3. The appeal turns on the inter-relationship of the perils
identified in clauses 1.2, 1.5 and 1.6 with clause 3 and with the
exclusions identified in clause 4.1.5. This
was considered in the courts below in two stages. First, four
preliminary issues were
identified, three of which were determined by Hamblen J by a
judgment given on
23 March 2012: [2012] EWHC 802 (Comm). There was then a trial
before Flaux J
of all other issues of fact and law extending over some 14 days
in October 2014,
leading to a judgment dated 8 December 2014: [2014] EWHC 4133
(Comm); [2015]
All ER (Comm) 439. An appeal against aspects of Hamblen J’s and
Flaux J’s
judgments was heard on 14-15 June 2016 and determined on 1
August 2016 by the
Court of Appeal (Laws LJ, Clarke LJ and Sir Timothy Lloyd):
[2016] EWCA Civ
808; [2017] 1 WLR 1303.
4. Hamblen J determined that, in order to rely on clause 4.1.5,
insurers did not need to show privity or complicity on the part of
(a) the insured or (b) any servant
or agent of the insured. There has been no challenge to these
conclusions. He also
answered in the negative a third issue
“whether the exclusion in clause 4.1.5 is only capable of
applying to exclude claims for loss or damage to a vessel
which
would otherwise fall within insuring clause 1.2 or 1.6, and
not
the other perils insured against under clause 1 and/or Section
A
of the Conditions.”
5. On that basis, Flaux J determined that owners were entitled
to recover from insurers. The cause of the vessel’s loss was the
malicious act of unknown third
parties in attaching the drugs to the hull, and the exclusion of
detainment, etc “by
reason of infringement of any customs … regulations” in clause
4.1.5 was to be read
as subject to an implied limitation where the only reason for
such infringement was
such an act. The Court of Appeal reached the opposite
conclusion, holding that no
basis existed for any such implied limitation, and that the
vessel’s loss could both
be attributed to a malicious third party act within clause 1.5
and be excluded as
“arising from … detainment … by reason of infringement of any
customs …
regulations” within clause 4.1.5. The Court of Appeal also
dismissed owners’ cross-
appeal (in support of which owners had offered no submissions)
against Hamblen
J’s determination of the third issue before him. Before the
Supreme Court, owners
have preserved their case that Hamblen J was wrong on this point
as an alternative
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to their primary case that, assuming he was right, clause 4.1.5
still does not cover
the present circumstances.
6. As is evident from this summary, it has been common ground
since at least the hearing before Flaux J that the attempted use by
unknown third parties of the
vessel for the purpose of smuggling involved the unknown third
parties “acting
maliciously” within the meaning of clause 1.5. Only on that
basis can owners claim
under clause 1.5 and argue that clause 4.1.5 is inapt to cut
back the cover against
malicious acts which clause 1.5 affords. However, during the
course of the hearing
before it, the Supreme Court concluded that it was necessary to
re-examine the
resulting common ground, to avoid the risks attaching to any
exercise of deriving
conclusions from what might prove a false premise. The parties
were therefore
invited to make and after the hearing made further written
submissions on the effect
of clause 1.5. The owners continued to resist the proposed
expansion of the issues
on this appeal, but in my view it involves no real prejudice on
a point which is one
of pure construction and law.
Events in detail
7. The vessel had in early August 2007 loaded a cargo of coal in
Lake Maracaibo, Venezuela for discharge in Italy. During an
underwater inspection on 12
August 2007, divers discovered a loose underwater grille, in the
space behind which
were a grappling hook, a saw, a rope and other tools. The Master
was told to have
the grille rewelded because of the risk of drug smuggling, but
declined as the vessel
was due to sail that night. In fact, there had been a
miscalculation of the vessel’s
draft, which, when appreciated, enabled her to load a further
800 metric tons. Her
sailing was thus delayed to 13 August 2007, enabling a second
underwater
inspection to take place, during which the divers now discovered
three bags of
cocaine weighing 132 kg strapped to the vessel’s hull, ten
metres below the
waterline and some 50 metres from the grille. Unknown third
parties were
responsible - presumably associated with a drug cartel intent on
smuggling drugs
out of South America into Europe. It is not suggested in these
proceedings that either
the owners or their crew were in any way implicated (although,
as will appear, a
different conclusion was reached in Venezuela with regard to the
master and second
officer).
8. The concealment of the drugs constituted an offence under
article 31 of the Venezuelan Anti-Drug Law 2005, which
provides:
“Whoever illicitly traffics, distributes, conceals, transports
by
any means, stores, carries out brokering activities with the
substances or their raw materials … for the production of
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narcotic drugs and psychotropic substances, will be punished
with a prison sentence of between eight and ten years.”
In case of an offence under article 31, article 63 authorised
seizure of any ship
involved “as a precautionary measure until … confiscation in a
definitive
judgment”, with a proviso that “the owner is exonerated from
that measure when
circumstances demonstrate its lack of intention”. Article 66
further provides:
“The … property … ships and other items employed to commit
the investigated offence, as well as property about which
there
is a reasonable suspicion that it originates from the
offences
envisaged in this Law or related offences … will be in all
cases
seized as a preventive measure and, when there is a final
and
definitive judgment, an order will be given to confiscate
and
the property will be awarded to the decentralised agency in
the
field …”
9. The vessel was detained and the crew were arrested. On 25
September 2007 the master and second officer were charged with
complicity in drug smuggling, and
on 31 October 2007 they were sent for trial and the judge, Judge
Villalobos, ordered
the continued detention of the vessel under articles 63 and 66
of the Anti-Drug Law.
In August 2010, following a jury trial, both officers were
convicted. They were
sentenced to nine years’ imprisonment and the vessel was ordered
to be confiscated.
It is accepted that the arrest and detention of the officers and
the detention and
confiscation of the vessel were all lawful under Venezuelan
law.
10. Meanwhile, the owners had on 18 June 2008 served a notice of
abandonment. Insurers accept that, if the peril which materialised
fell within the scope of the
insurance cover, this notice of abandonment was effective to
constitute the vessel a
constructive total loss under clause 3 of the Institute War
Risks and Strikes Clauses.
Analysis
11. The premise of the case as advanced until now has been that
unknown third parties acted maliciously within the meaning of
clause 1.5, shifting the focus to the
question whether in the circumstances the exclusion in clause
4.1.5 applies. If clause
1.5 does not apply, then owners would have to fall back on the
perils of detainment,
etc in clause 1.2, to which, in linguistic terms, clause 4.1.5
directly responds. If the
peril relied on had been “detainment”, it would be difficult,
indeed one might have
thought impossible, to argue that the present was not a case of
“detainment … by
reason of infringement of any customs … regulations” within
clause 4.1.5.
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12. An attempt to mount such an argument failed unequivocally in
the Court of Appeal in a smuggling case with some similarities to
the present: Sunport Shipping
Ltd v Tryg Baltica International (UK) Ltd (The “Kleovoulos of
Rhodes”) [2003] 1
Lloyd’s Law Rep 138. A large quantity of cocaine was there
discovered by divers
behind a grille in a sea chest at the vessel’s discharge port,
Aliveri - having been
placed there by unknown third persons at the load port in
Colombia, South America.
The crew were ultimately acquitted of any involvement, but the
vessel’s detainment
lasted so long that she could be and was declared a constructive
total loss under
clause 3. Owners evidently did not think to advance a case based
on clause 1.5, so
the dispute turned solely on whether clause 4.1.5 applied. The
Court of Appeal held
that the phrase “infringement of any customs … regulations”
extended naturally to
smuggling, citing in this respect Panamanian Oriental Steamship
Corpn v Wright
(The “Anita”) [1971] 1 WLR 882. Owners argued nevertheless that
the detainment
of the vessel as part of the proceedings against the crew and
her subsequent
constructive total loss was not by reason of the infringement of
customs regulations
by unknown persons in Colombia. The Court of Appeal held that
the infringement
was “not simply the historical causa sine qua non of the
detention but remained the
proximate or operative cause of the detention for the whole
relevant period” (para
66). Owners’ claim therefore failed. It is to my mind
inconceivable that the result
could have been any different had the drugs been discovered and
the vessel detained
at the load port before setting out on her voyage.
13. The present owners’ case thus turns on the fact that the
Institute War and Strikes Clauses identify as perils insured, not
merely detainment etc under clause
1.2, but also loss or damage to the vessel caused by “any person
acting maliciously”
under clause 1.5. Once relied on, the specific cover against
malicious acts should
not, owners submit, be undermined or cut back by an exception of
“detainment …
by reason of infringement of customs … regulations” which owners
submit is most
obviously addressing other situations - or which, on owners’
alternative case, is not
even addressing clause 1.5 at all.
14. It is in the light of these submissions that the Supreme
Court concluded that, despite the common ground between the
parties, the necessary starting point is to
examine the scope of the concept of “any person acting
maliciously” in clause 1.5.
This is a phrase which must be seen in context, appearing as it
does in the middle of
perils insured involving “loss of or damage to the Vessel caused
by … [1.5] any
terrorist or any person acting maliciously or from a political
motive”. Its companions
in that context are terrorists and persons acting from a
political motive, causing loss
or damage to the vessel. What the drafters appear to have had in
mind are persons
whose actions are aimed at causing loss of or damage to the
vessel, or, it may well
be, other property or persons as a by-product of which the
vessel is lost or damaged.
Applying a similar rationale to the central phrase “any person
acting maliciously”,
it can be said that the present circumstances involve no such
aim. Foreseeable
though the risk may be that drugs being smuggled may be
detected, their detection
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and any consequent loss or damage to the vessel were the exact
opposite of the
unknown smugglers’ aim or, presumably, expectation.
15. The Institute War and Strikes Clauses must also be read in
the context of established authority, particularly at the time when
they were drafted and, on 1
October 1983, issued. Here, the position is also instructive.
The Clauses were part
of a determined attempt by the London market to update its
marine forms. This
included the replacement of the old Lloyd’s SG policy which,
however quaintly
attractive to those initiated in the mystique, had with
justification been criticised as
to its form and content for some 200 years: see eg Brough v
Whitmore (1791) 4 Term
Rep 206, 210, per Buller J; Rickards v Forestal Land, Timber and
Railways Co Ltd
[1941] 1 KB 225, 246-247, per MacKinnon LJ; Panamanian Oriental
Steamship
Corpn v Wright (The “Anita”) [1970] 2 Lloyd’s Rep 365, 372, per
Mocatta J; and
Shell International Petroleum Co Ltd v Gibbs (The “Salem”)
[1982] QB 946, 990D-
F, per Kerr LJ and 998F-999B, per May LJ. It also included the
replacement of the
Institute War and Strike Clauses Hulls - Time (1/10/59) which
had been used to
insure, inter alia, risks excluded under the Lloyd’s SG form by
the FC&S warranty
(“warranted free of capture, seizure, arrest, restraint or
detainment, and the
consequences thereof or of any attempt thereat”), as well as the
replacement of the
Institute Strikes, Riots and Civil Commotions Clauses used to
cover cargo.
16. The attempt came to fruition with the issue of a series of
freshly drafted Clauses on 1 October 1983, some 18 months after
Kerr LJ’s and May LJ’s words in
The Salem. While the clauses were freshly drafted, they did not
abandon, but sought
to bring fresh order and clarity to, many of the time-honoured
concepts used in the
market. In the present context, prior authority on the concept
of persons acting
maliciously is therefore potentially relevant. By clause 1 of
the Institute Strikes Riots
and Civil Commotions Clauses (issued for use with cargo
insurance), cover was
granted in respect of
“loss or damage to the property hereby insured caused by
(a) strikers, locked-out workmen, or persons taking
part in labour disturbances, riots or civil commotions;
(b) persons acting maliciously.”
17. The scope of the cover provided by clause 1(b) in respect of
“persons acting maliciously” had been recently considered in two
important cases: Nishina Trading
Co Ltd v Chiyoda Fire and Marine Insurance Co Ltd (The “Mandarin
Star”) [1968]
1 WLR 1325 (Donaldson J); [1969] 2 QB 449 and The Salem in early
1982. Neither
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case would have escaped the knowledge of marine insurance
practitioners and
lawyers or of the specialist drafters of the revised Clauses -
and particularly not the
sensational case of The Salem. In The Mandarin Star the vessel’s
owners had,
following a dispute about unpaid charter hire, directed the
master to sail from off
Kobe, the discharge port, to Hong Kong, where, in collusion with
the charterers,
they purported to mortgage the cargo. The insured cargo
interests recovered the
cargo, but (in a friendly test case) claimed under the insurance
the expenses of doing
so and of returning the cargo to Kobe. They alleged that there
had been a “taking at
sea” or theft under the SG form or loss “caused by … persons
acting maliciously”
within the Institute Strikes, Riots and Civil Commotions
Clauses. Their claim
succeeded in the Court of Appeal on the basis that there had
been a taking at sea,
when the vessel sailed from off Kobe. (This conclusion was
regarded as erroneous
in The Salem by Lord Denning at pp 987E-988C and Kerr LJ at pp
989-993E, on
the basis that a change in the character of the shipowner’s
possession vis-à-vis cargo-
interests without any dispossession from outside, was outside
the policy cover.) The
claim failed by a majority on theft, on the basis that the
vessel’s owners may have
thought that they had a lien justifying their conduct. It failed
on malicious act both
at first instance and in the Court of Appeal. Donaldson J said,
at p 55, that: “in the
context in which the cover is afforded … an element of spite
towards someone,
although not necessarily the cargo-owners, is an essential
element”. Lord Denning
MR said (p 462H) that: “‘maliciously’ here means spite, or ill
will, or the like. There
is none such here.” Edmund Davies LJ agreed at p 463D with Lord
Denning on this
point - even though in his view the taking also amounted to
theft. Phillmore LJ also
agreed that the claim for malicious act failed, saying, less
compellingly in my view,
that (p 467G-H):
“it seems to me that that claim ignores the terms of the
policy,
which under the Institute Strikes, Riots and Civil
Commotions
clauses is obviously intended to deal with damage effected
in
the course of some civil disturbance which has nothing
whatever to do with the facts of this case.”
18. The Salem involved the audacious making away with a whole
cargo of crude oil, in order to supply South Africa in breach of
international sanctions. The
conspirators purchased and manned a tanker, The Salem. They
chartered her to an
innocent charterer, Pontoil SA, for a voyage to Europe carrying
a cargo of oil which
Pontoil acquired from Kuwait Oil Co in Mina al Ahmadi and agreed
to resell to
Shell, whose interest was insured with the defendant and other
insurers for some
USD56m. Instead of performing the chartered voyage, the
conspirators procured the
tanker to enter Durban, where most of its cargo (some 180,000
mt) was discharged
and delivered to the South African Strategic Fuel Fund
Association in return for
payment to the conspirators of a price of over USD32m. They then
took the vessel
to sea again with a residue of the cargo (some 15,000 mt), and
had her scuttled to
conceal what had happened.
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19. Shell as insured cargo-owners claimed for barratry or taking
at sea under the SG policy form and/or for “persons acting
maliciously” under the Institute Strikes,
Risks and Civil Commotions Clauses. In the event, it was held
that there was no
barratry, because the conspirators who owned the vessel were
privy to its crew’s
acts; there was no taking at sea in respect of the bulk of the
cargo, because its
effective taking was not at sea, but was in Durban (per Kerr LJ
at pp 993F-996B,
997H-998D and May LJ at pp 1000H-1002A) or at the load port,
Mina al Ahmadi
(per Lord Denning MR at pp 986G-987D). Shell’s claim for the
residue of the cargo
succeeded as a loss by perils of the sea, under the language of
a special clause
introduced (following the House of Lords decision in F Samuel
& Co Ltd v Dumas
[1924] AC 431) to allow an innocent assured to recover for loss
otherwise
“attributable to the wrongful act or misconduct of the
shipowners or their servants”.
20. Shell’s claim for “persons acting maliciously” failed before
Mustill J on the ground that, giving these words the meaning
attributed to them in The Mandarin
Star:
“… they are plainly not appropriate to the present loss. The
conspirators were not inspired by personal malice against
Pontoil; they simply wished to steal the cargo, the identity
of
the owner being immaterial. The same is the case as regards
the
destruction of the cargo remaining on board when the vessel
sank. Perhaps there may, consistently with the decision in
The
Mandarin Star, be a right to recover where the insured
property
is damaged by an act of wanton violence, the malice being
directed, so to speak, at the goods rather than their owner.
But
it is unnecessary to decide this here, for the cargo was not
lost
because the conspirators desired to harm either the goods or
their owner. The loss was simply a by-product of an
operation
carried out for the purposes of gain. On the reasoning of
the
Court of Appeal this is not within the scope of the peril.”
(pp
965-966)
In the Court of Appeal, Lord Denning referred to Mustill J’s
ruling on this point,
and recorded that it was accepted by Shell.
21. In June 1982, some four months after the Court of Appeal’s
judgment in The Salem, Mr Hallgarten QC representing owners in
Athens Maritime Enterprises
Corpn v Hellenic Mutual War Risks Association (Bermuda) Ltd
[1983] 1 QB 647
recited the effect of the statements in The Mandarin Star and
The Salem on the
meaning of any person acting maliciously. The context was cover
in respect of
“persons acting maliciously” afforded by the Association under
old-form rules
covering war risks, which included cover in the same terms as
those quoted from
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clause 1 of the Institute Strikes Riots and Civil Commotions
Clauses in para 16
above. Mr Hallgarten did not suggest that the judge (Staughton
J) could do anything
but apply the statements in the two cases cited, but said merely
that “the position
was reserved in case the matter goes further”. Counsel’s
precautionary reservation
in this case cannot to any significant extent weaken the force
of the two recent
authorities of The Mandarin Star and The Salem as aids to
understanding the
meaning of clause 1.5.
22. In my view, therefore, the concept of “any person acting
maliciously” in clause 1.5 would have been understood in 1983 and
should now be understood as
relating to situations where a person acts in a way which
involves an element of spite
or ill-will or the like in relation to the property insured or
at least to other property
or perhaps even a person, and consequential loss of, or damage
to, the insured vessel
or cargo. It is not designed to cater for situations where the
state of mind of spite,
ill-will or the like is absent. In the present case, foreseeable
though the vessel’s
seizure and loss were if the smuggling attempt was discovered,
the would-be
smugglers cannot have had any such state of mind. They were, on
the contrary, intent
on avoiding detection. If the commission of a wrongful act,
coupled with the
foreseeability of loss or damage affecting the insured property
were sufficient,
irrespective of motive or aim, then the claims for malicious
acts should have
succeeded in both The Mandarin Star and The Salem. (That said, I
confess to some
hesitation about the narrowness of Mustill J’s decision in The
Salem, excluding from
the concept both theft of the majority of the cargo and
deliberate destruction of the
rest, on the ground that these were simply by-products of a
larger operation carried
out for gain. I do not however suggest that, even if others were
to share this
hesitation, a different interpretation should, after so long a
period, necessarily follow
if a similar issue were now relitigated.)
23. The contrary common ground in this case until the Supreme
Court was based on two later judgments of Colman J. The first was
in Strive Shipping Corpn v
Hellenic Mutual War Risks Association (Bermuda) Ltd (The “Grecia
Express”)
[2002] EWHC 203 (Comm); [2002] 2 Lloyd’s Rep 88, 96 and the
second in North
Star Shipping Ltd v Sphere Drake Insurance plc (The “North
Star”) [2005] EWHC
665 (Comm); [2005] 2 Lloyd’s Rep 76 at para 83, where he
reiterated what he had
said in the former case. In The Grecia Express, it is important
to note the submission
which was being made by insurers to and was rejected by Colman
J. The submission
was that “maliciousness” required the owners to show that the
sinking was directed
at them, rather than, for example, the result of random
vandalism: see pp 95-96.
After considering The Mandarin Star and The Salem, Colman J said
(p 96) that:
“Since the factual basis upon which the Court of Appeal
reached its conclusion in both cases was such that the
‘persons
acting maliciously’ cover was inapplicable whether it had
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Page 13
either of the meanings considered by Mr Justice Mustill in
Shell
Petroleum the point is at large in this Court.”
On the face of this passage, therefore, Colman J saw himself as
operating within the
parameters set by the previous two authorities.
24. Colman J’s ensuing discussion has nonetheless been seen by
some as supporting a broader interpretation of the concept of
“persons acting maliciously”.
He said:
“Accordingly, when considering the meaning of ‘persons
acting maliciously’ it is necessary to ask whether it is
necessary
to adopt a meaning which is so limited that it will cover loss
or
damage caused for the purpose of injuring the particular
insured but will not cover random vandalism. That the word
‘maliciously’ is quite capable of covering wanton damage is
clear from its use and the meaning accorded to it under the
Malicious Damage Act 1861. Section 58 provides that where
malice is an ingredient of an offence under that Act it is
immaterial whether the offence was committed ‘from malice
conceived against the owner of the property in respect of
which
it shall be committed or otherwise’. That opens up the
meaning
to cover any conduct whereby the property in question is
intentionally caused to be lost or damaged or is lost or
damaged
in circumstances amounting to recklessness on the part of
the
same person.
In my judgment, there is no reason why the meaning of
‘person
acting maliciously’ should be more narrowly confined than
the
meaning which would be given to the word ‘maliciously’ under
the Malicious Damage Act 1861. Provided that the evidence
establishes that the vessel was lost or damaged due to the
conduct of someone who was intending to cause it to be lost
or
damaged or was reckless as to whether such loss or damage
would be caused, that is enough to engage the liability of
war
risks underwriters. The words therefore cover casual or
random
vandalism and do not require proof that the person concerned
had the purpose of injuring the assured or even knew the
identity of the assured.”
In this passage, I do not consider that Colman J was intending
to do more than decide
the narrow issue before him, which was, as indicated, whether
spite, ill-will or the
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Page 14
like required conduct targeted specifically at the insured
property or its owner, rather
than casual or random vandalism. He had started by indicating
that he was
addressing the distinction between the possible meanings
identified by Mustill J in
The Salem. His references to recklessness must be read in the
context of the issue
before him, whether the cover extended to casual or random
vandalism. He was
focusing on conduct in relation to the vessel or other property
in circumstances
where the perpetrator was either aiming at the occurrence of
loss or damage to the
vessel or engaging in random vandalism. That, as I have already
pointed out, is not
the present case. Finally, both cases before Colman J concerned
loss or damage
which was due either to a deliberate attempt to write the ship
off or to vandalism.
So the question of a criminal act with a quite different
intention but which might,
however foreseeably, lead to seizure and detention of the vessel
by public authorities
did not actually arise or require to be addressed.
25. In support of an interpretation of “any person acting
maliciously” broad enough to embrace any wrongful act, however
motivated, committed in
circumstances where the actor could be said to foresee the
possibility of loss or
damage to property, owners rely not only on their interpretation
of Colman J’s
judgments, but also on discussion in authority of the concept of
malice in a tortious
context. They point in this connection to the authority of
Pesquerias y Secaderos de
Bacalao de Espana SA v Beer (1946) 79 Lloyd’s Rep 417. In that
case, at pp 431-
432, Atkinson J cited Allen v Flood [1898] AC 1 to assist in the
construction of the
then Riots and Civil Commotions Clauses. These clauses covered
loss or damage by
persons taking part in riots and civil commotions or “from any
other malicious act
whatsoever by any persons”, but excluded war risks and all other
risks ordinarily
covered under the vessel’s marine policy. Atkinson J held on the
facts that the
vessels insured had been taken away by rioters, rather than
combatants in the
Spanish Civil War, and that this also amounted to a loss by a
malicious act.
26. In his judgment, Atkinson J cited passages from the speeches
of Visc Halsbury LC and Lord Herschell in Allen v Flood. In Allen v
Flood, Mr Flood had
in the course of his duties as a trade union official told the
employers of some
ironworkers that the ironworkers would go on strike, unless the
employers ceased
employing some woodworkers, who the ironworkers believed had
worked on iron
for another firm. The employers discharged the woodworkers
(without breach of
contract). Two of the woodworkers sued Mr Flood for loss of
their employment,
arguing that mere malice, in the sense of doing that which was
calculated in the
ordinary course to damage, and which did damage, without just
cause or excuse,
sufficed to ground tortious liability. The majority of the House
rejected this sense in
this context, affirming that, although in a colloquial sense
malice means simply ill-
will, “in its legal sense it means a wrongful act done
intentionally without just cause
or excuse” (per Lord Herschell at p 124). However, so wide a
definition would
appear to have been unnecessary for the actual decision in
Pesquerias y Secaderos.
The rioters who there made off with and caused the loss or
damage of the vessels
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Page 15
plainly intended to deprive the owners of the vessels in
question. Their conduct
would appear to have satisfied the tests indicated in The
Mandarin Star and The
Salem. But whether it would have or not, those tests constitute
a sounder basis for a
proper understanding of the intention of the drafters of the
1983 Institute Clauses
than Atkinson J’s shortly reasoned importation from an entirely
different area of the
law of the definition used in Allen v Flood.
27. A similar observation applies to the meaning of malice in
the criminal law context of the Malicious Damage Act 1861, to which
Colman J referred. Apart from
the fact that very few sections of the Malicious Damage Act
remain on the statute
book after the Criminal Damage Act 1971, there seems a
negligible chance that
either of the Acts was in the minds of the drafters of the
Institute Clauses in 1983.
However, Colman J was right to regard both the insurance and the
criminal law
concepts of a person acting maliciously as covering casual or
random vandalism;
and they each involve significant, if not necessarily identical,
subjective mental
elements. Some authors have suggested that the use of a criminal
law test would
offer practical benefits of simplicity and avoid the need to
consider the state of mind
of the actor: see Professor Bennett on The Law of Marine
Insurance, 2nd ed (2006),
para 14.24 and Michael D Miller’s work on Marine Insurance War
Risks, 3rd ed
(2005), pp 201-205, where reference is also made to the Offences
against the Person
Act 1861. But a long stream of authority under the 1861 statutes
act established that
the criminal law concept of malice involved a very significant
mental element: see
R v G [2003] UKHL 50; [2004] 1 AC 1034. However, this old
criminal law
definition (for which, see R v Cunningham [1957] 2 QB 396,
quoted by Lord
Bingham in R v G, para 11), was developed in a context and for a
purpose very
different from those applying to the Institute War and Strikes
Clauses.
28. For these reasons, neither Allen v Flood nor authority under
Victorian criminal law statutes of 1861 appears to me a very
helpful guide to the meaning of
“any person acting maliciously” in clause 1.5 of the Institute
Clauses. The more
helpful approach is therefore to read the phrase in those
Clauses in its immediate
context and in the light of the recent marine insurance
authorities to which I have
referred which must have been in the drafters’ mind. What the
context and
authorities indicate is that an element of spite, ill-will or
the like is required. But I
would not limit the concept to conduct directed towards the
insured interest. An act
directed with the relevant mental element towards causing the
loss of or damage or
injury to other property or towards a person could lead to
consequential loss of or
damage to an insured interest within clause 1.5, whether the
actor was a terrorist, a
person acting maliciously or a person acting from a political
motive.
29. On the basis of the above, what matters is that this is not
a case where the attempted smuggling can be regarded as having been
aimed at the detention or
constructive total loss of or any loss or damage to the vessel
or any property or
person. Under Venezuelan law, the smuggling was no doubt itself
a wrongful act
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Page 16
done intentionally without just cause or excuse. But the
smugglers were not
intending that any act of theirs should cause the vessel’s
detention or cause it any
loss or damage at all. In my opinion, they were not acting
maliciously within the
meaning of clause 1.5.
30. The conclusion is that clause 1.5 is not apt to cover the
present circumstances, and that the premise on which this appeal
reaches the Supreme Court is incorrect.
That is sufficient to dismiss this appeal.
The position if the premise adopted below were correct
31. I have rejected the premise which was common ground between
the parties. I will nevertheless address the position had it been
accepted. For this purpose, the
assumption is therefore that (contrary to my view) the attempted
smugglers could
and should be regarded as having caused the loss of the vessel
acting maliciously.
Two questions then arise. The question which is logically first
arises from owners’
fall-back challenge to Hamblen J’s decision on the third issue
before him. Can clause
4.1.5 be read as having any application at all to clause 1.5?
The second question, if
Hamblen J’s affirmative answer to this first question was
correct, is whether clause
4.1.5 applies in the particular circumstances, bearing in mind
the apparent
coincidence in this case of the malicious act insured under
clause 1.5 and the
infringement of customs regulations excluded under clause
4.1.5.
32. As to the first question, the force of owners’ case is that
clause 4.1.5 uses terminology which echoes relentlessly the
terminology of clauses 1.2 and 1.6, and
in no way that of clause 1.5. On the other hand, it would be
surprising if, by putting
a claim on the basis of a malicious act under clause 1.5, an
insured could improve
the position which would apply if it had invoked clause 1.2 or
1.6. Further, and even
more significantly, owners themselves must, by relying on clause
3 to establish a
constructive total loss, be accepting and asserting that the
vessel has been the subject
of seizure, arrest, restraint or detainment, and has been lost
thereby, which is exactly
the subject matter of the exclusion introduced by clause 4.1.5
(“loss … arising from
… arrest restraint detainment …”). In these circumstances,
owners were correct to
regard their fall-back case with a distinct lack of
enthusiasm.
33. The second question therefore arises whether clause 4.1.5
applies in the circumstances of this case, bearing in mind the
apparent coincidence of the
malicious act insured under clause 1.5 and the infringement of
customs regulations
excluded under clause 4.1.5. Flaux J saw this coincidence as
necessitating an implied
limitation to the effect that clause 4.1.5 would not apply
“where the only reason why
there has been an infringement of the customs regulations by the
vessel is because
of the malicious acts of third parties” (para 258). The problem
about this is that no
-
Page 17
apparent basis exists for any such implied limitation. None of
the criteria for
implication of an implied term is satisfied. It is entirely
understandable that clause
4.1.5 should cut back or define the limits of cover otherwise
available under clause
1. That is its clear role in relation to clause 1.2 or 1.6 if
relied on. (It is also an
element of the role of, for example, clause 4.1.2 in relation to
the cover otherwise
provided by clause 1.1.) It makes sense that clause 4.1.5 should
have a similar effect
in relation to clause 1.5, if clause 1.5 is engaged at all.
34. Flaux J thought the contrary. He referred to a concession
made by insurers that clause 4.1.5 would not apply in the event of
a “put-up” job. That was a reference
to a situation hypothesised by Lord Denning MR in The “Anita”
[1971] 1 WLR 882.
The Anita was decided under the Institute War and Strikes
Clauses Hull - Time
(1/10/59), which, as noted in para 15 above, insured inter alia
the risks excluded
from the SG form by the FC&S warranty. Such insurance was
subject in clause 4 to
a precursor of the present clause 4.1.5. Clause 4 read:
“This insurance excludes
(1) loss, damage or expense arising from
(a) requisition or pre-emption
(b) arrest, restraint or detainment under quarantine
regulations or by reason of infringement of any customs
regulations; …”
35. The Anita was a case of crew smuggling. The vessel was
confiscated by order of a special court set up by decree in
Vietnam. Mocatta J held that what occurred
was not ordinary judicial process, but involved a seizure or
restraint of princes
within the FC&S clause. He went on to hold that insurers had
also failed to discharge
an onus on them to show that the confiscation arose by reason of
infringement of
customs regulations, rather than by a decision of the special
court which was not
only given outside its jurisdiction, but may well have been
given with the knowledge
of that fact and upon the orders of the executive (p 365). The
Court of Appeal held
that Mocatta J was wrong to place the onus on insurers to
disprove political
interference. As Lord Denning MR put it (p 888H): “Suffice it
for them to prove the
breach of regulations and that the confiscation was the result
of it. That they proved.”
Fenton Atkinson LJ said that he could “for the purposes of this
case ... see no
distinction between smuggling and infringement of customs
regulations” (p 889C)
and that insurers “showed a blatant case of smuggling, or,
perhaps more correctly, a
strong prima facie case of an infringement of customs
regulations followed by a
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Page 18
proper hearing by a lawfully constituted tribunal to whom this
court should be slow
indeed to attribute bad faith” (p 889D-E). The special court did
not appear on the
evidence to have acted outside its jurisdiction. There had been
no plea that it had
acted under executive orders and the evidence did not show this
either.
36. The discussion in The Anita indicates that there may be
situations in which a loss is not attributable to infringement of
customs regulations, but to the improper
exercise of judicial or political power. Lord Denning’s
reference to a “put-up job”
postulated another situation in which there would be no loss by
infringement of
customs regulations, as follows (p 888A):
“Of course, if there were no goods smuggled and the seizure
was a put-up job, it would be quite different.”
However, that seems obvious. There would be no infringement of
customs
regulations at all. There would also be no goods smuggled, even
if one assumes in
this example that the authorities went to the length of planting
drugs on board, or
attaching them to the hull.
37. Flaux J postulated two further scenarios which he suggested
would fall outside clause 4.1.5: (a) a malicious third party plants
drugs in order to blackmail
the owners and when they refuse to pay informs the authorities
about the drugs
leading to the vessel’s seizure; and (b) the same scenario
without the blackmail
attempt, but with the malicious third party simply planting the
drugs and informing
the authorities in order to get the vessel detained. I note that
both scenarios fall
within the narrow concept of malicious act indicated in The
Mandarin Star and The
Salem. Even if the concept of malicious has a wider scope,
capable of embracing the
different scenario presented by the present appeal, these two
scenarios are on this
basis distinguishable. The centrality of the intentional
motivation to the causation of
a loss may well be capable as a matter of causation of taking
the loss outside the
scope of the exception in clause 4.1.5. That does not mean that
any other malicious
acts, such as that involved in this appeal, involve loss falling
outside the scope of
clause 4.1.5, as a matter of either construction or
causation.
38. Flaux J also found support for a confined interpretation of
clause 4.1.5 in dicta of Toulson J approved by Potter LJ in
Handelsbanken ASA v Dandridge (The
“Aliza Glacial”) [2002] EWCA Civ 577; [2002] 2 Lloyd’s Rep 421,
para 52,
treating a vessel’s loss, following owners’ refusal to meet an
outrageous ransom
demand by a terrorist organisation, as outside the scope of a
loss by “any financial
cause” in clause 4.1.7: see also Melinda Holdings SA v Hellenic
Mutual War Risks
Association (Bermuda) Ltd (The “Silva”) [2011] EWHC 181 (Comm);
[2011] 2
Lloyd’s Rep 141, para 46(ii), per Burton J. I see little
difficulty about this. Clause
-
Page 19
4.1.7 is obviously aimed at ordinary financial vicissitudes, of
one sort or another,
not at the outrageous sequela of terrorist activity. The cause
of the vessel’s loss
would still be the terrorist activity. But that throws no light
on the scope or
application of clause 4.1.5 in the present case.
39. Neither as a matter of construction nor as a matter of
causation is there in my view any basis for treating clause 4.1.5
as inapplicable to the present loss. Mr
Alistair Schaff QC for owners submitted that the malicious act,
rather than the
infringement of the customs regulations, fell to be regarded as
the proximate,
effective or real cause of the insured loss. This submission
faces a number of
problems. The first is that the malicious act is the
infringement of the customs
regulations. There is (as Fenton Atkinson LJ thought in the
parallel circumstances
of The Anita) no distinction between them. The role of clause
4.1.5 is, as I have said,
to cut back on cover in respect of loss caused by perils
otherwise insured under
clauses 1.2 and 1.6. If clause 1.5 applies in the present
circumstances, the role of
clause 4.1.5 with regard to that clause appears on its face to
be the same.
40. Secondly, even if some meaningful distinction existed
between the malicious act and the infringement of customs
regulations, it does not follow that this gives
rise to a binary choice between two competing proximate, real or
effective causes of
the insured loss. What is required is an exercise of
construction of the particular
wording, giving effect at each stage to the natural meaning of
the words in their
context. This is also how the House of Lords saw a somewhat
similar issue in the
famous case of John Cory & Sons v Burr (1883) 8 App Cas 393.
The question there
was whether a loss fell to be attributed (solely) to the insured
peril of barratry or fell
within the warranted FC&S exception. This was treated as a
question as
construction: see eg at pp 396-397 per the Earl of Selborne LC,
pp 402-403 per Lord
Blackburn, p 403 per Lord Bramwell and pp 405 and 406 per Lord
Fitzgerald.
41. As a matter of construction, the analysis of the present
Clauses falls into three stages. The first stage, if clause 1.5 is
capable of applying at all, is that there was a
loss caused by a “person acting maliciously”. Assuming that
there was, the second
stage is that the means by which loss arose was the vessel’s
consequent detainment
and the fact that this lasted for a continuous period of six
months. Only on this basis
were the owners able to treat the vessel as a constructive total
loss under clause 3.
The third stage involves the question whether such detainment
was by reason of any
infringement of customs regulations within clause 4.1.5.
42. At each stage, different factors are introduced, and are
capable of shifting the focus of attention. In Royal Greek
Government v Minister of Transport (The “Ann
Stathatos”) (1949) 83 Lloyd’s Rep 228, 237 (as I noted in ENE
Kos 1 Ltd v Petroleo
Brasileiro SA (No 2) (The Kos) [2012] 2 AC 164, para 43) Devlin
J pointed out that
the existence of an exceptions clause is itself likely to affect
what falls to be regarded
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Page 20
as dominant, proximate or relevant; and that this is because
“the whole of what one
might call the area naturally appurtenant to the excepted event
must be granted to
it”. In the present case, it makes it possible that a loss may
both be caused by a
person acting maliciously within clause 1.5 and at the same time
arise from
detainment by reason of infringement of customs regulations
within clause 4.1.5.
The scheme of the Clauses directs attention first to whether
there was prima facie a
loss by a specified peril and then to whether the same loss
arises from an excepted
peril. The transition from the question whether there was a loss
caused by a
malicious act to the question whether the loss arose from
detainment by reason of
infringement of customs regulations is furthermore inevitable,
since owners have to
rely on clause 3 to establish any case of constructive total
loss at all.
43. Thirdly, while the general aim in insurance law is to
identify a single real, effective or proximate cause of any loss,
the correct analysis is in some cases that
there are two concurrent causes. This is particularly so where
an exceptions clause
takes certain perils out of the prima facie cover: ENE Kos, at
paras 41-43 and
International Energy Group Ltd v Zurich Insurance plc [2016] AC
509, para 73.
The possibility of such an analysis is in the present case
evident when detainment
is, in terms, a peril insured against by clause 1.2, and, in
order to claim at all, owners
have to invoke a detainment under clause 3. It is only by
refraining from relying on
the most obviously applicable peril covered, that owners are
able to seek to suggest
any way at all round the otherwise obviously applicable
exception in clause 4.1.5.
Putting the matter the other way round, if the attempted
smuggling constituted a
malicious act within clause 1.5 at all, this was at best only
one element in the
causative events leading to the loss, which is relevant under
the wording of this
policy; detection, detainment and its continuation for a period
of at least six
continuous months were equally essential contributing causes of
any loss.
44. Owners submit that the detainment and its continuation can
be regarded, and dismissed causatively, as no more than incidents
of or sequela to the original
malicious act. This is unreal in practical terms. They were by
no means bound to
occur. The unknown smugglers must have acted on the basis that
there was a
considerable prospect of their activity going undetected and
being successful.
Owners’ submission on this point is also inconsistent with
authority. A very similar
argument was run in Cory v Burr, where the master of a vessel
took on board at
Gibraltar eight tons of tobacco, for delivery to a smaller
vessel for the purpose of
being smuggled into Spain. Spanish revenue officers seized the
vessel, and took it
into Cadiz with a view to its confiscation, which was only
avoided by heavy
expense. It was argued that the master’s barratrous smuggling
was the cause of the
vessel’s loss, rather than the capture or seizure or its
consequences from which the
vessel was warranted free by the FC&S clause.
45. The argument was shortly dismissed. The Earl of Selborne
viewed such a construction of the policy and the warranty taken
together as “leading to
-
Page 21
consequences altogether destructive of the whole operation of
the warranty” (p 397).
Lord Blackburn said that it was true that the insurance had not
been warranted free
from barratry, but went on (pp 400-401):
“the barratry would itself occasion no loss at all to the
parties
insured. If it had not been that the Spanish revenue
officers,
doing their duty (they were quite right in that respect),
had
come and seized the ship, the barratry of the captain, in
coasting
along there, hovering as we should call it along the coast,
in
order that the small smuggling vessel might come and take
the
tobacco, would have done the assured no harm at all. The
underwriters do undertake to indemnify against barratry;
they
do undertake to indemnify against any loss which is directly
sustained in consequence of the barratry; and in this case, as
I
said before, I think the seizure was as direct a consequence
of
the barratry as could well be. But still, … it was the
seizure
which brought the loss into existence - it was a case of
seizure.
Then why should it not be protected by this warranty?”
46. Lord Bramwell noted the argument that the loss was not from
the seizure but in truth from the barratry, and the “ingeniously”
made suggestion that the seizure
was “an intermediate step”, and responded: “But it was the
ultimate and final step
which occasioned the loss” (p 403). Finally, Lord Fitzgerald,
after observing that
barratry “may be either harmless or effect but a small loss” (p
406) put the question:
“By what was the loss occasioned? I apprehend that there can
be but one answer to this question, namely, that the loss
arose
from the seizure. There was no loss occasioned by the act of
barratry. The barratry created a liability to forfeiture or
confiscation, but might in itself be quite harmless; but the
seizure, which was the effective act towards confiscation,
and
the direct and immediate cause of the loss, was not because
the
act of the master was an act of barratry but that it was a
violation of the revenue laws of Spain.”
47. Cory v Burr therefore makes clear that there is no question
of dismissing a vessel’s capture and detainment in such
circumstances as a mere incident of, or
sequela to, an underlying cause such as barratry in that case,
or a malicious act in
the present. Similarly, in The Salem, the majority concluded
that the relevant
“taking” of the bulk of the cargo occurred on its discharge in
Durban, rejecting
submissions that it occurred when the vessel deviated from her
voyage to put into
Durban, or when she sailed from Mina al Ahmadi with the
intention of discharging
-
Page 22
the cargo in Durban - however much these events signalled the
forthcoming
appropriation.
48. There are of course cases where one peril will dominate and
exclude from relevance a later development which taken by itself
might otherwise be seen as
engaging an exception. The two scenarios hypothesised in para 37
above can be seen
as examples. The case of In re Etherington and the Lancashire
and Yorkshire
Accident Co [1909] 1 KB 591 may be regarded as another. The
insured there
suffered a riding accident, inflicting a shock to his system and
involving him in a
severe wetting which he had to endure on his way home. He caught
pneumonia
within just over a day, from which he died. The policy contained
an exception of
“disease or other intervening cause”, but it also covered death
occurring within three
months of an accident, suggesting that the natural sequela to an
accident were
intended to be covered. The policy exception was in the
circumstances read contra
proferentem so as to be confined to situations where some new
intervening disease
was the cause of death, rather than a case like the actual one,
where pneumonia
afflicted the insured within a little over a day. The Court of
Appeal understandably
regarded the case as difficult and it was probably near the
borderline. The court’s
readiness to apply the maxim contra proferentem in the way it
did is also readily
understandable in a personal injuries context, far removed from
the present, which
lies in an area well-covered by authority.
49. Fourthly, there are, in Cory v Burr, differences evident in
the approaches of Lord Blackburn on the one hand and Lords Bramwell
and Fitzgerald on the other.
Lord Blackburn, whose speech has proved to have the greatest
resonance in
subsequent authority, saw the case as one where it made sense to
speak of concurrent
causes. Lord Bramwell and Lord Fitzgerald approached it as one
where it was
possible to identify a single real or effective cause of the
loss. For my part, I prefer
Lord Blackburn’s approach in the present case, where the perils
insured include both
detainment and malicious acts and the policy wording introduces
different stages in
an enquiry, at each of which different considerations may apply.
Subsequent
authority confirms Lord Blackburn’s conclusion that, where an
insured loss arises
from the combination of two causes, one insured, the other
excluded, the exclusion
prevents recovery: see eg P Samuel & Co Ltd v Dumas [1924]
AC 431, 467, per
Lord Sumner; Wayne Tank & Pump Co Ltd v Employers’ Liability
Assurance Corpn
Ltd [1974] QB 57, per Lord Denning MR at p 67B-F, per Cairns LJ
at p 69B-D and
per Roskill LJ at pp 74E to 75D. Here, the two potential causes
were the malicious
act and the seizure and detainment. The malicious act would not
have caused the
loss, without the seizure and detainment. It was the combination
of the two that was
fatal. The seizure and detainment arose from the excluded peril
of infringement of
customs regulations, and the owners’ claim fails. In Global
Process Systems Inc v
Syarikat Takaful Malaysia Bhd (The Cendor MOPU) [2011] UKSC 5;
[2011] 1
Lloyd’s Rep 560, para 88, I expressed a reservation in the very
different context of
the inter-relationship in the light of the Marine Insurance Act
1906 and of existing
-
Page 23
authority between hull cover against perils of the seas and
inherent vice. That
reservation does not on any view have traction in relation to
the present careful
exclusion of the peril of loss arising from detainment by reason
of infringement of
customs regulations from cover under the Institute War and
Strikes Clauses Hulls-
Time.
50. Fifthly, echoing the Earl of Selborne’s words in Cory v
Burr, owners’ construction would be at least significantly
destructive of the purpose of clause
4.1.5. Clause 4.1.5 is unnecessary to cater for cases of
smuggling by owners
themselves. Cases of crew barratry are, at least generally,
excluded by the
conjunction of clause 4.2 of the Institute War and Strikes
Clauses Hulls - Time with
clause 6.2.5 of the Institute Time Clauses Hulls, which covers
barratry: see per
Colman J in The Grecia Express at p 97 and in The North Star,
para 82. It is true
that clause 6.2.5 is subject to a proviso, which Colman J did
not mention - “provided
that such loss or damage has not resulted from want of due
diligence by the Assured,
Owners or Managers”. But it seems improbable that the Institute
War and Strikes
Clauses Hulls - Time were intended to pick up a narrow band of
barratrous conduct,
to which owners were not privy, but against which they had
failed to exercise due
diligence to guard.
51. It may of course be suggested that clause 4.1.5 was inserted
simply in order to make the position express in relation to
smuggling to which either the owners or
the crew were privy. But there is no indication that it is
limited to them, and there
has, rightly in my view, been no appeal against Hamblen J’s
decision that it is not.
There is nothing to suggest that insurers were willing to accept
the risks of
smuggling by third parties. A considerable risk of detainment
and constructive total
loss exists, whoever is responsible for the smuggling. Indeed,
it will commonly be
very difficult for customs authorities, insurers or anyone to
know whether or not
crew members were implicated. Owners point to various situations
in which clause
4.1.5 could still bite, even if it does not apply to third party
smuggling: the innocent
importation or exportation of prohibited goods, or breaches of
customs regulations
not involving smuggling. No doubt such cases exist, but there is
nothing to confine
clause 4.1.5 to them, or to make it likely that anyone
contemplated so narrow a
confine to its operation.
52. Owners also point to scenarios which would not be caught by
clause 4.1.5, including the scenario, on which the drafters of the
clause may perhaps be forgiven
for not focusing, of purely domestic “smuggling” within a
particular country. These
too provide no reason for not giving clause 4.1.5 its ordinary
meaning, in the
relatively commonplace situations which its drafters were
clearly addressing.
53. Owners also submit that it would be surprising if barratrous
smuggling (without any want of due diligence on owners’ part) was
covered by clause 6.2.5 of
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Page 24
the Institute Time Clauses Hulls (see para 49 above), whereas
third party smuggling
were not covered by the Institute War and Strikes Clauses Hulls
- Time. They point
out, correctly, that the two sets of Clauses would, at least
generally, be expected to
mesh together to achieve a coherent picture. The
inter-relationship of the two sets of
Clauses in this area is however specifically addressed by a
clause in the Institute
Time Clauses Hulls. This reads:
“23. WAR EXCLUSION
In no case shall this insurance cover loss damage liability
or
expense caused by
23.1 war civil war revolution rebellion insurrection, or
civil strife arising therefrom, or any hostile act by or
against a belligerent power
23.2 capture seizure arrest restraint or detainment
(barratry and piracy excepted), and the consequences
thereof or any attempt thereat
23.3 derelict mines torpedoes bombs or other derelict
weapons of war.”
54. Assuming, without having to decide, that the effect of
clause 23.2 is that detainment following a barratrous smuggling
attempt is covered by the Institute
Time Clauses Hulls, it is clear that any other detainment is
left to be addressed by
other arrangement, most obviously by the Institute War and
Strikes Clauses Hulls -
Time. The specific reference in clause 23 to “capture seizure
arrest restraint or
detainment … and the consequences thereof or any attempt
thereat” takes one
straight to clause 1.2 of those Clauses, where loss by
detainment is expressly
covered. But the cover is subject to the exclusion in clause
4.1.5 in respect of loss
by “detainment … by reason of infringement of customs …
Regulations”. The
natural inference from the interrelationship of the two sets of
Clauses is not that third
party smuggling was left by the Institute Time Clauses Hulls to
be covered by the
Institute War and Strikes Clauses Hulls - Time. Rather it is
that detainment by third
party smuggling was not contemplated as covered by the latter
Clauses at all.
Instead, assuming detainment by barratrous smuggling to be
covered by the
combination of clauses 6.2.5 and 23.2 in the Institute Time
Clauses Hulls,
detainment by third party smuggling was understood to be
excluded by both sets of
Clauses. Whether that is commercially satisfactory or whether
cover is available on
the market for owners to fill any gap in respect of third party
smuggling which may
-
Page 25
be perceived as a result is not a matter which we have the
material to judge or upon
which we can speculate.
Conclusion
55. For these reasons, I would conclude:
i) First, (contrary to the common ground between the parties in
the courts below) the vessel’s loss was not caused by “any person
acting maliciously”
within the meaning of clause 1.5 of the Institute Clauses. It
was caused simply
by detainment, which entitled the owners to invoke clauses 1.2
as well as
clause 3, but which, since the detainment itself arose by reason
of
infringement of customs regulations, also brought the exception
in clause
4.1.5 into operation.
ii) Second, if it had been possible to view the loss as caused
by a person acting maliciously within clause 1.5, it would still
have been excluded by
clause 4.1.5 as arising, at least concurrently, from detainment
by reason of
infringement of customs regulations.
I arrive therefore at the same result as the Court of Appeal,
though by different
reasoning. The appeal should be dismissed.
1. In August 2007, the vessel “B Atlantic”, owned by the
appellant, was used by unknown third parties in an unsuccessful
attempt to export drugs from Venezuela. After her consequent
detention by the Venezuelan authorities and the expiry of a period
of...2. The war risks insurance policy was for a year commencing 1
July 2007. According to section A, it afforded hull and machinery
cover3. The appeal turns on the inter-relationship of the perils
identified in clauses 1.2, 1.5 and 1.6 with clause 3 and with the
exclusions identified in clause 4.1.5. This was considered in the
courts below in two stages. First, four preliminary issues ...4.
Hamblen J determined that, in order to rely on clause 4.1.5,
insurers did not need to show privity or complicity on the part of
(a) the insured or (b) any servant or agent of the insured. There
has been no challenge to these conclusions. He also an...5. On that
basis, Flaux J determined that owners were entitled to recover from
insurers. The cause of the vessel’s loss was the malicious act of
unknown third parties in attaching the drugs to the hull, and the
exclusion of detainment, etc “by reason ...6. As is evident from
this summary, it has been common ground since at least the hearing
before Flaux J that the attempted use by unknown third parties of
the vessel for the purpose of smuggling involved the unknown third
parties “acting maliciously” ...7. The vessel had in early August
2007 loaded a cargo of coal in Lake Maracaibo, Venezuela for
discharge in Italy. During an underwater inspection on 12 August
2007, divers discovered a loose underwater grille, in the space
behind which were a grappli...8. The concealment of the drugs
constituted an offence under article 31 of the Venezuelan Anti-Drug
Law 2005, which provides:9. The vessel was detained and the crew
were arrested. On 25 September 2007 the master and second officer
were charged with complicity in drug smuggling, and on 31 October
2007 they were sent for trial and the judge, Judge Villalobos,
ordered the cont...10. Meanwhile, the owners had on 18 June 2008
served a notice of abandonment. Insurers accept that, if the peril
which materialised fell within the scope of the insurance cover,
this notice of abandonment was effective to constitute the vessel a
const...11. The premise of the case as advanced until now has been
that unknown third parties acted maliciously within the meaning of
clause 1.5, shifting the focus to the question whether in the
circumstances the exclusion in clause 4.1.5 applies. If clause
...12. An attempt to mount such an argument failed unequivocally in
the Court of Appeal in a smuggling case with some similarities to
the present: Sunport Shipping Ltd v Tryg Baltica International (UK)
Ltd (The “Kleovoulos of Rhodes”) [2003] 1 Lloyd’s La...13. The
present owners’ case thus turns on the fact that the Institute War
and Strikes Clauses identify as perils insured, not merely
detainment etc under clause 1.2, but also loss or damage to the
vessel caused by “any person acting maliciously” unde...14. It is
in the light of these submissions that the Supreme Court concluded
that, despite the common ground between the parties, the necessary
starting point is to examine the scope of the concept of “any
person acting maliciously” in clause 1.5. Thi...15. The Institute
War and Strikes Clauses must also be read in the context of
established authority, particularly at the time when they were
drafted and, on 1 October 1983, issued. Here, the position is also
instructive. The Clauses were part of a det...16. The attempt came
to fruition with the issue of a series of freshly drafted Clauses
on 1 October 1983, some 18 months after Kerr LJ’s and May LJ’s
words in The Salem. While the clauses were freshly drafted, they
did not abandon, but sought to bring...17. The scope of the cover
provided by clause 1(b) in respect of “persons acting maliciously”
had been recently considered in two important cases: Nishina
Trading Co Ltd v Chiyoda Fire and Marine Insurance Co Ltd (The
“Mandarin Star”) [1968] 1 WLR 132...18. The Salem involved the
audacious making away with a whole cargo of crude oil, in order to
supply South Africa in breach of international sanctions. The
conspirators purchased and manned a tanker, The Salem. They
chartered her to an innocent charte...19. Shell as insured
cargo-owners claimed for barratry or taking at sea under the SG
policy form and/or for “persons acting maliciously” under the
Institute Strikes, Risks and Civil Commotions Clauses. In the
event, it was held that there was no barra...20. Shell’s claim for
“persons acting maliciously” failed before Mustill J on the ground
that, giving these words the meaning attributed to them in The
Mandarin Star:21. In June 1982, some four months after the Court of
Appeal’s judgment in The Salem, Mr Hallgarten QC representing
owners in Athens Maritime Enterprises Corpn v Hellenic Mutual War
Risks Association (Bermuda) Ltd [1983] 1 QB 647 recited the effect
of...22. In my view, therefore, the concept of “any person acting
maliciously” in clause 1.5 would have been understood in 1983 and
should now be understood as relating to situations where a person
acts in a way which involves an element of spite or ill-wi...23.
The contrary common ground in this case until the Supreme Court was
based on two later judgments of Colman J. The first was in Strive
Shipping Corpn v Hellenic Mutual War Risks Association (Bermuda)
Ltd (The “Grecia Express”) [2002] EWHC 203 (Comm...24. Colman J’s
ensuing discussion has nonetheless been seen by some as supporting
a broader interpretation of the concept of “persons acting
maliciously”. He said:25. In support of an interpretation of “any
person acting maliciously” broad enough to embrace any wrongful
act, however motivated, committed in circumstances where the actor
could be said to foresee the possibility of loss or damage to
property, owne...26. In his judgment, Atkinson J cited passages
from the speeches of Visc Halsbury LC and Lord Herschell in Allen v
Flood. In Allen v Flood, Mr Flood had in the course of his duties
as a trade union official told the employers of some ironworkers
that ...27. A similar observation applies to the meaning of malice
in the criminal law context of the Malicious Damage Act 1861, to
which Colman J referred. Apart from the fact that very few sections
of the Malicious Damage Act remain on the statute book afte...28.
For these reasons, neither Allen v Flood nor authority under
Victorian criminal law statutes of 1861 appears to me a very
helpful guide to the meaning of “any person acting maliciously” in
clause 1.5 of the Institute Clauses. The more helpful appr...29. On
the basis of the above, what matters is that this is not a case
where the attempted smuggling can be regarded as having been aimed
at the detention or constructive total loss of or any loss or
damage to the vessel or any property or person. Und...30. The
conclusion is that clause 1.5 is not apt to cover the present
circumstances, and that the premise on which this appeal reaches
the Supreme Court is incorrect. That is sufficient to dismiss this
appeal.31. I have rejected the premise which was common ground
between the parties. I will nevertheless address the position had
it been accepted. For this purpose, the assumption is therefore
that (contrary to my view) the attempted smugglers could and
shou...32. As to the first question, the force of owners’ case is
that clause 4.1.5 uses terminology which echoes relentlessly the
terminology of clauses 1.2 and 1.6, and in no way that of clause
1.5. On the other hand, it would be surprising if, by putting
...33. The second question therefore arises whether clause 4.1.5
applies in the circumstances of this case, bearing in mind the
apparent coincidence of the malicious act insured under clause 1.5
and the infringement of customs regulations excluded under ...34.
Flaux J thought the contrary. He referred to a concession made by
insurers that clause 4.1.5 would not apply in the event of a
“put-up” job. That was a reference to a situation hypothesised by
Lord Denning MR in The “Anita” [1971] 1 WLR 882. The A...35. The
Anita was a case of crew smuggling. The vessel was confiscated by
order of a special court set up by decree in Vietnam. Mocatta J
held that what occurred was not ordinary judicial process, but
involved a seizure or restraint of princes within ...36. The
discussion in The Anita indicates that there may be situations in
which a loss is not attributable to infringement of customs
regulations, but to the improper exercise of judicial or political
power. Lord Denning’s reference to a “put-up job” ...37. Flaux J
postulated two further scenarios which he suggested would fall
outside clause 4.1.5: (a) a malicious third party plants drugs in
order to blackmail the owners and when they refuse to pay informs
the authorities about the drugs leading to t...38. Flaux J also
found support for a confined interpretation of clause 4.1.5 in
dicta of Toulson J approved by Potter LJ in Handelsbanken ASA v
Dandridge (The “Aliza Glacial”) [2002] EWCA Civ 577; [2002] 2
Lloyd’s Rep 421, para 52, treating a vessel’s...39. Neither as a
matter of construction nor as a matter of causation is there in my
view any basis for treating clause 4.1.5 as inapplicable to the
present loss. Mr Alistair Schaff QC for owners submitted that the
malicious act, rather than the infrin...40. Secondly, even if some
meaningful distinction existed between the malicious act and the
infringement of customs regulations, it does not follow that this
gives rise to a binary choice between two competing proximate, real
or effective causes of th...41. As a matter of construction, the
analysis of the present Clauses falls into three stages. The first
stage, if clause 1.5 is capable of applying at all, is that there
was a loss caused by a “person acting maliciously”. Assuming that
there was, the ...42. At each stage, different factors are
introduced, and are capable of shifting the focus of attention. In
Royal Greek Government v Minister of Transport (The “Ann
Stathatos”) (1949) 83 Lloyd’s Rep 228, 237 (as I noted in ENE Kos 1
Ltd v Petroleo Bra...43. Thirdly, while the general aim in
insurance law is to identify a single real, effective or proximate
cause of any loss, the correct analysis is in some cases that there
are two concurrent causes. This is particularly so where an
exceptions clause ...44. Owners submit that the detainment and its
continuation can be regarded, and dismissed causatively, as no more
than incidents of or sequela to the original malicious act. This is
unreal in practical terms. They were by no means bound to occur.
The ...45. The argument was shortly dismissed. The Earl of Selborne
viewed such a construction of the policy and the warranty taken
together as “leading to consequences altogether destructive of the
whole operation of the warranty” (p 397). Lord Blackburn sa...46.
Lord Bramwell noted the argument that the loss was not from the
seizure but in truth from the barratry, and the “ingeniously” made
suggestion that the seizure was “an intermediate step”, and
responded: “But it was the ultimate and final step which...47. Cory
v Burr therefore makes clear that there is no question of
dismissing a vessel’s capture and detainment in such circumstances
as a mere incident of, or sequela to, an underlying cause such as
barratry in that case, or a malicious act in the pr...48. There are
of course cases where one peril will dominate and exclude from
relevance a later development which taken by itself might otherwise
be seen as engaging an exception. The two scenarios hypothesised in
para 37 above can be seen as examples....49. Fourthly, there are,
in Cory v Burr, differences evident in the approaches of Lord
Blackburn on the one hand and Lords Bramwell and Fitzgerald on the
other. Lord Blackburn, whose speech has proved to have the greatest
resonance in subsequent autho...50. Fifthly, echoing the Earl of
Selborne’s words in Cory v Burr, owners’ construction would be at
least significantly destructive of the purpose of clause 4.1.5.
Clause 4.1.5 is unnecessary to cater for cases of smuggling by
owners themselves. Cases ...51. It may of course be suggested that
clause 4.1.5 was inserted simply in order to make the position
express in relation to smuggling to which either the owners or the
crew were privy. But there is no indication that it is limited to
them, and there ...52. Owners also point to scenarios which would
not be caught by clause 4.1.5, including the scenario, on which the
drafters of the clause may perhaps be forgiven for not focusing, of
purely domestic “smuggling” within a particular country. These too
p...53. Owners also submit that it would be surprising if
barratrous smuggling (without any want of due diligence on owners’
part) was covered by clause 6.2.5 of the Institute Time Clauses
Hulls (see para 49 above), whereas third party smuggling were not
...54. Assuming, without having to decide, that the effect of
clause 23.2 is that detainment following a barratrous smuggling
attempt is covered by the Institute Time Clauses Hulls, it is clear
that any other detainment is left to be addressed by other a...55.
For these reasons, I would conclude:i) First, (contrary to the
common ground between the parties in the courts below) the vessel’s
loss was not caused by “any person acting maliciously” within the
meaning of clause 1.5 of the Institute Clauses. It was caused
simply by detainment, which ...ii) Second, if it had been possible
to view the loss as caused by a person acting maliciously within
clause 1.5, it would still have been excluded by clause 4.1.5 as
arising, at least concurrently, from detainment by reason of
infringement of customs ...